Many Roma in Europe are stateless and live outside social protection

Council of Europe: Commissioner for Human Rights, Many Roma in Europe are stateless and live outside social protection, 6 July 2009, available at: http://www.refworld.org/docid/4a7023c72.html [accessed 3 March 2015]

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[06/07/09] There are Roma in a number of European countries who have no nationality. They face a double jeopardy - being stateless makes life even harder for those who are already stigmatized and facing a plethora of serious, discrimination-related problems. For those who happen to be migrants as well, their situation is even worse.

Many Roma lack personal identity documents which hinders their access to basic human rights, such as education and health services, and increases their susceptibility to continued statelessness. In fact, estimates indicate that thousands have no administrative existence at all. They often have never obtained a birth certificate and do not overcome administrative hurdles when trying to be recognised by the State. They live entirely outside of any form of basic social protection or inclusion.

This is largely a hidden problem. Naturally, it is difficult to establish facts in this area but too little effort has been made by state authorities to collect relevant data about the scope and nature of this systematic marginalisation. As repeatedly noted by the European Committee of Social Rights, states have an obligation to identify the dimension of the exclusion of vulnerable groups such as the Roma, including through statistical means.

Absence of data, only estimates available

There are no precise statistics on the number of stateless Roma. Estimates in South Eastern Europe indicate the following:

According to the UNHCR the great majority of the persons referred to as stateless face problems being formally recognized as citizens of the country where they are habitually resident. This is because they lack proper registration and documentation and encounter many difficulties in their attempt to obtain proof of nationality.

Political developments in recent years have made Roma in Europe more vulnerable. The break-up of former Czechoslovakia and former Yugoslavia caused enormous difficulties for persons who were regarded by the new successor states as belonging somewhere else - even if they had resided in their current location for many years.

The Czech Republic used a citizenship law which made tens of thousands of Roma stateless (the intention was that they should move to Slovakia). This law was, however, amended after interventions from Council of Europe and others in 1999. Thereby the main part, though not all, of the problem was finally resolved.

In Slovenia several thousand persons, among them many Roma, became victims of a decision to erase non-Slovene residents from the Register of Permanent Residents. They had missed a deadline and had not sought or obtained Slovenian citizenship soon after the independence of the country. Many of them had moved to Slovenia from other parts of Yugoslavia before the dissolution of the Federation.

Croatia and "the former Yugoslav Republic of Macedonia" also adopted restrictive laws which made access to nationality very difficult. Again, this hit Roma people in particular. One consequence was that those who had migrated to other parts of Europe were in limbo; they were not accorded nationality either by their host country or by the new states which had emerged in the areas where they had previously lived.

The Kosovo (1) conflict led to a large displacement of Roma people primarily to Serbia, Bosnia and Herzegovina, Montenegro and "the former Yugoslav Republic of Macedonia" but also to other countries outside the region. While in Kosovo recently, I met with one NGO which is currently working on a large civil registration project, hoping to register the 10 000 to 11 000 members of the community who find themselves with no papers.

It is not acceptable that European citizens are deprived of their right to a nationality  a basic human right. It is necessary to address this problem with much more energy than has been done so far.

European host states where children of Roma migrants have been born and have lived for several years should do their utmost to provide a secure legal status to these children and their parents. Both the UN Convention on the Rights of the Child and the International Covenant of Civil and Political Rights stipulate that children shall have the right to acquire a nationality. In other words, the host country has an obligation to ensure that children do have a nationality; the fact that their parents are stateless is no excuse.(2)

When in Italy last January I was pleased to learn that the government was preparing draft legislation to provide Italian nationality to stateless minors whose parents had left the war-torn former Yugoslavia and where at least one of their parents was in Italy prior to January 1996. The government also announced that it would ratify the 1997 European Convention on Nationality without any reservation.(3) A number of Roma stateless children will benefit from such legislative developments - when adopted.

Problems relating to nationality also affect many adult Roma. When in Montenegro, I learned about the impressive efforts of the UN High Commissioner for Refugees who is trying to break the vicious circle caused by the absence of identity documentation. Without such papers individuals are hindered from asserting their most basic rights. The programme has already helped a great number of individuals including some who had left Kosovo.

I also noticed positive steps during a visit to "the former Yugoslav Republic of Macedonia". Progress has been made to ensure that Roma can attain personal documents including birth certificates, identity cards, passports and other documents related to the provision of health and social security benefits.

These are the good examples. However, it should be remembered that such measures are an obligation. The Strasbourg Court has stated that the non-provision by states of proper personal documentation which would facilitate employment, medical care or providing for other crucial needs, may indeed contradict the right to private life, a human right protecting the individual's moral and physical integrity.(4)

The Council of Europe has been a pioneer in the field of protecting Roma rights. The messages coming from its various bodies emphasize that host states should employ all possible means to end the de facto or de jure statelessness of Roma and provide them with a nationality, in accordance with the standards of the 1997 European Convention on Nationality and the 2006 Council of Europe Convention on the Avoidance of Statelessness in relation to State Succession.

Both treaties contain general principles, rules and procedures of the utmost importance for the effective enjoyment of the human right to a nationality in Europe. Some core provisions are:

- respect for the overarching principle of non-discrimination in law and practice;

- obligation on states to avoid statelessness, including in the context of state succession;

- obligation to grant nationality to children born on their territories and who do not acquire another nationality at birth;

- restrictive conditions on loss of nationality by law;

- duty of states to reason and provide in writing their nationality-related decisions.

The problem of the stateless Roma must be addressed with determination. They often do not have the means to speak out themselves. A study recently published by the EU Fundamental Rights Agency showed also that many Roma do not know how to approach ombudsmen and other national human rights institutions.

National human rights action plans should pay attention to the urgent need to provide resources to facilitate legal work for stateless Roma. In Croatia a free legal aid scheme for Roma was put into place in 2003. This was a good step to promote the necessary legal empowerment. Many more initiatives of this kind are needed.

Thomas Hammarberg

--------------------------------------------Notes:

1. All reference to Kosovo, whether to the territory, institutions or population, in this text shall be understood in full compliance with United Nations Security Council Resolution 1244 and without prejudice to the status of Kosovo.

2. Convention of the Rights of the Child, Article 7 and International Covenant on Civil and Political Rights, Article 24.

3. Paragraphs 54-55 of Italy's comments on my Report of 16/04/2009. Although to date it has still not done so.

4. See Smirnova v Russia, judgment of the European Court of Human Rights, 24/10/2003, paragraphs 95-97.